Tawurayi Marvin Kashiri v Ysmin Tacklah Mohammed

### Preamble
1
HH 749-18
HC 2015/18
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TAWURAYI MARVIN KASHIRI

versus

YSMIN TACKLAH MOHAMMED

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 6 November 2018 and 14 November 2018

Opposed Application

T. Chigudugudze, for the applicant

P.C. Paul, for the respondent

MATHONSI J: It is not apparent from the papers how the parties are related, how they came to jointly own an immovable property and indeed how and why they came on a collision course resulting in a series of litigation but in this application the applicant seeks to enforce a court order granted by consent. The applicant seeks an order compelling the respondent to transfer her half share in the property known as stand 24 Philadelphia Township of Philadelphia, Harare (the property) which is jointly held by the parties by deed of transfer number 4986/02. In the event of the respondent’s failure to undertake that exercise, the applicant would like the Sheriff of the court to do the honours and all that on the pain of legal costs to be borne by the respondent.

What can be gleaned from the papers is that during the course of 2013 the 2 parties traded “blows” with the applicant taking the lead in jumping onto the ring by instituting a claim against the respondent in HC 6598/13 for the revival of deed of transfer number 4986/02 which had been superseded by deed of transfer number 9729/02 in favour of the respondent. Not to be outdone the respondent also took the fight to the applicant filing a claim in HC 10368/13 seeking to be declared the lawful owner of another property being No. 3 Munondo Road Hatfield Harare. It is commendable that the parties found each other and settled both matters as a result of which, ably assisted by their respective legal practitioners, they signed a composite deed of settlement on 16 February 2017, to wit:

“1.	Deed of Transfer DT 9729/02 be and is hereby cancelled.

2.	Deed of Transfer DT 4986/02 be and is hereby revived.

3.	The plaintiff shall sign all the relevant documents to effect transfer of the property known as Lot 142 Block C of Hatfield Estate, to the defendant.

4.	The parties shall engage the services of the following estate agencies to get valuations of the stand No. 24 of Philadelphia Township;

Guest and Tanner

Dawn Properties

5.	The parties shall use the average value from these two valuations, if they are within acceptable ranges of each other. In the event of the parties not reaching a consensus on the values, the services of a third estate agent shall be engaged as chosen by the parties’ legal practitioners – whose value shall be final. The cost of all valuations shall be shared equally by the parties.

6.	Upon a valuation being agreed to by the parties, the plaintiff shall buy out the first defendant’s  50% share in Stand 24 of Philadelphia, within 6 months of receiving the valuation failing which the defendant shall be afforded the opportunity to purchase the plaintiff’s 50% share of the property within a further  period of 6 months. If the right to purchase is not exercised by either party the property shall be sold by private treaty and the parties share the net proceeds of the sale equally.

7.	The terms of this Deed of Settlement shall form a part of the orders in Case No HC 6598/13 and Case No HC 103 68/13”

Indeed the terms of the settlement were incorporated in the court orders granted on 8 February 2017, per zhou J, and 27 February 2017, per muremba J, respectively. The order relevant to the present application is former the pertinent part of which is in fact clause 4 thereof which reads:

“4. The co-ownership of Tawurayi Marvin Kashiri and Ysmin Tacklah Kashiri of the 	immovable property known as stand 24 Philadelphia Township of Philadelphia shall be 	governed by the terms of the deed of settlement between the parties, which is filed  of 	record.”

That way the deed of settlement reproduced above became a court order which is enforceable against the parties. What followed thereafter is what has brought the parties back to court.

They jointly instructed both Guest & Tanner Real Estate (Pvt) Ltd and Dawn Property Consultants (Pvt) Ltd to undertake the evaluation of the property which turns out to be an incomplete double storey house built on that stand. Guest and Tanner rendered a sworn valuation report initially dated 30 March 2017 placing the unencumbered freehold value of the property at $292 000-00. They later altered that value following queries raised by the applicant’s legal practitioners in a letter dated 26 May 2017 to $192 000-00 citing a typographical error on their part. Dawn Properties submitted a valuation report dated 28 March 2017 for $250 000-00.

Everything appeared nice and dandy when the parties engaged each other in the step-by-step exercise provided for in the court order. They agreed that the aggregate value arising from the 2 valuations was $221 000-00 and as such the respondent was to be paid the average of $110 500-00 within 6 months in accordance with the court order. By email of 19 September 2017 Martin Chijara of Khupe & Chijara legal practitioners, the erstwhile lawyers of the respondent, provided the applicant’s lawyers with bank account details where the money due to the respondent was to be deposited. That amount was duly deposited to the credit of the respondent on 5 January 2018 and proof of payment was forwarded to the respondent on 11 January 2018. It is common cause that the payment was made within the period of 6 months during which the applicant had the right of option to purchase the respondent’s half share of the property.

When the respondent did not take measures to transfer her half share to the applicant, the applicant sued. Alleging unethical conduct on the part of the applicant’s legal practitioners for failing to disclose or copy to her legal practitioners the letter of 26 May 2017 querying the contents of the Guest & Tanner valuation report, the respondent opposed the application. She deposed that her source of discomfort was that the applicant had “not revealed the contents of that letter” and that it was apparent that Guest & Tanner had altered their valuation lowering the value on the basis of representations made on behalf of the applicant, which were highly unethical given the non-disclosure. The respondent admitted receipt of the payment but stated her desire to return it.

The respondent now has a new set of legal practitioners but Martin Chijara, who represented her at the time, submitted a supporting affidavit which is not lacking in suspicion, speculation and surmise but is devoid of substance. He confirmed receiving both reports from Guest & Tanner and that the two had “noticeable differences” in the market value of the property namely $292 000-00 in the first report and $192 000-00 in the second one. He however stated that at that time he had not observed that the 2 valuations were different. He made the point that the valuer, L Mlambo of Guest & Tanner, has since died and that he “very much doubt(s) if the change in the valuation was due to a typographical error.” He suspected that the change was as a result of the complaint by the applicant’s lawyers “that the valuation was too high.”

Clearly therefore neither the respondent nor her erstwhile legal practitioner have any knowledge of any undue influence being brought to bear upon L Mlambo to reduce the valuation improperly. Apart from the genuine complaint that they should have been kept in the loop about the letter of complaint, they have nothing of substance upon which the Guest and Tanner valuation can be impugned or that there was no genuine tying error as explained by Mlambo in his letter of 23 June 2017 the material part of which is:

“1. First and foremost, we would like to apologise for the typographical error in the 	Valuation Certificate of our report that erroneously reflected the open market value as        	US$292 000.00 instead of US$192 000.00. The error is sincerely regretted. In view of the 	foregoing, we have accordingly enclosed herewith the Valuation Reports with the 	corrected values.”

It has not been shown why this court should not accept that explanation. As l have said Chijara’s affidavit talks of doubt and suspicion. A court of law is not interested in his doubting mind or his suspicious nature but only facts and evidence. It cannot reject a sworn statement on the basis of doubts and suspicions. More importantly, we now have the benefit of a copy of the letter of complaint written by Chihambakwe Mutizwa & Partners to the estate agents on 21 May 2017 which letter motivated the alteration. One would have thought that with the benefit of having sight of the letter the respondent would have done the honourable thing to capitulate. Nowhere, whatsoever in that letter is the figure of $292 000.00 queried as to incite the estate agents to alter it. All the 7 or so queries raised therein relate to banal, if not mundane, issues pertaining to valuations and generally call for an explanation on grey areas as many have been detected. There is nothing suggesting that the value be changed. I am satisfied therefore, that the applicant did not influence the estate agent to alter the value, and that the alteration arose following the genuine discovery of a typing error. It has not even been suggested in opposition that the value of $192 000.00 for the structure in question is unreasonable.

In any event, if indeed the respondent was unhappy with that valuation she was under no obligation whatsoever to accept it. The court order provides her with a remedy in clause 5 which is to seek a third valuation. She has not availed herself that option and l do not accept Mr Paul’s explanation that she did not do so because she was dealing with this application. Chijara received the corrected report, by his own admission, under cover of a letter dated 22 July 2017. This application was only filed on 5 March 20018 8 months later. Surely if the respondent desired to pursue the option of a third valuation, she had more than enough time to do so especially regard being had that time was of the essence.

Without the option of a third valuation what remains are 2 valuations obtained in terms of a court order. The applicant has complied with the terms to the letter and has paid to the respondent in terms of that court order. The applicant is therefore entitled to transfer. What is more, it is a principle of our law that a party cannot reprobate and abrobate a course in proceedings. With the benefit of both valuations from Guest & Tanner the respondent gave instructions regarding payment of money due to her in terms of the agreements. The applicant sourced the full amount after being denied the indulgence of paying it on certain terms. He paid the money as instructed by the respondent thereby shifting positions in response thereof. So even if indeed the respondent had rejected the Guest & Tanner valuation without saying so, by virtue of the doctrine of estoppel, she is prevented from raising such rejection having misled the applicant by her conduct that she accepted it.

The principles of estoppel are stated by the learned authors Van der Merwe, Van Huyssteen, Reineck and Lubbe, Contract General Principles, 4th ed  Juta at pp 28-29:

“In terms of estoppel, someone who has been brought under an incorrect impression (in other words has been misled) by another, and who – in reliance on that impression – has acted to his detriment, may prevent (estop) the other person from relying on the correct state of affairs before 	a court of law. If estoppel is raised successfully, it has the effect that the incorrect impression is maintained as if it were correct. Estoppel thus functions by means of a fiction. Estoppel is a defence and not the basis of the claim. The person who has been misled may raise estoppel only if the other party raises the correct facts: the misrepresentee cannot rely directly on the misrepresentation by way of estoppel.”

See also Union Government v National Bank of SA Ltd 1921 AD 121; Mann v Sydney Hunt Motors (Pvt) Ltd 1958 (2) SA 102 (GW).

In order to succeed in relying on estoppel a party must establish all the requirements of estoppel. They are:

1.  that the other party made a misrepresentation about the correct facts;

2.  that the misrepresentation was accompanied by fault either dolus or negligence;

3.  that he or she reasonably relied on the misrepresentation;

4.  that he or she  acted upon the misrepresentation to his or her prejudice;

5.  that the act of his or her prejudice was caused by the misrepresentation; and

6.  that the impression is one fit to be maintained by law.

Without discussing each of those requirements individually I am satisfied that this is a case in which estoppel applies. It is not enough for Chijara or indeed the respondent to say that after receiving the 2 reports they did not scrutinize them in order to see that they were different. That is their fault and in the process the applicant prejudicially acted on the strength of their actions.

More importantly, we are here dealing with the imperatives of a court order that should be carried into execution where the other party has complied while the other has not taken advantage of a remedy provided for in the order. The authority, dignity and respect of courts of law should never be demeaned, prejudiced or undermined. It behoves the subject to bow to the decision of the court and where there exists a remedy, to then pursue that remedy elsewhere. This is important for the proper administration of justice. See Mathuthu v Municipality of Chegutu HH 502/14 (unreported). Every citizen of this country is obliged to obey the orders of the courts. In the words of Romer LJ in Hodkinson v Hodkinson (1952) 2 ALL ER 567 (CA) at 569 C:

“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncomprising nature of this obligation is shown by the fact that it even extends to cases where the person affected believes it to be irregular or even void”

See also Mpofu v Mlilo 2002 (1) ZLR 160 (H) at 163 B-C

The mere fact of what may be inappropriate or even unethical conduct of the applicant’s lawyers in raising queries with the estate agent without involving the respondent and her lawyer is not a ground for refusing to obey judicial command. It is an issue which should be raised with the Law Society of Zimbabwe which supervises lawyers but it does not excuse the respondent from complying with the order. If its any consolation, I have found that it did not even prejudice the respondent.

In the result, it is ordered that:

1.  The respondent is directed to sign all documents necessary to effect transfer of her

half share which is registered in the name of Ysmin Tacklah Mohammed in Stand

24 Philadelphia Township of Philadelphia Harare, measuring 8 632 square metres,

to the applicant within fourteen (14) days of the date of this order.

2.  In the event of the respondent’s failure to comply with paragraph 1 above, then the

Sheriff for Zimbabwe be and is hereby authorized and directed to sign all documents and to do everything necessary to effect such transfer on behalf of the respondent.

3.  The respondent shall bear the costs of this application.

Chihambakwe, Mutizwa & Partners, applicant’s legal practitioners

Wintertons, defendant’s legal practitioners